September 2013
The
scandals roiling Washington over the past two weeks involve troubling government
behavior that had been hidden—the IRS targeting of conservative groups and the
Justice Department’s surveillance of the Associated Press, among others. Largely
overlooked amid the histrionics has been a shocker hiding in plain sight. Last
week, the Obama administration moved to dramatically undermine students’ and
faculty rights at colleges across the country.
The
new policy was announced in a joint letter from the Education Department and
Justice Department to the University of Montana. The May 9 letter addressed the
results of a year-long joint investigation by the departments into the school’s
mishandling of several serious sexual-assault cases. The investigation
determined that the university’s policies addressing sexual assault failed to
comply with Title IV of the Civil Rights Act of 1964 and Title IX of the
Education Amendments of 1972.
But
the joint letter, which announced a "resolution agreement" with the university,
didn’t stop there. It then proceeded to rewrite the federal government’s rules
about sexual harassment and free speech on campus.
If
that sounds hyperbolic, consider the letter itself. The first paragraph declares
that the Montana findings should serve as a "blueprint for colleges and
universities throughout the country." After outlining the specifics of the case,
the letter states that only a stunningly broad definition of sexual
harassment—"unwelcome conduct of a sexual nature"—will now satisfy federal
statutory requirements. This explicitly includes "verbal conduct," otherwise
known as speech.
The
letter rejects the requirement, established by legal precedent and previous
Education Department guidance, that sexual harassment must be "objectively
offensive." By eliminating this "reasonable person" standard—which the Education
Department has required since at least 2003, and which protects the accused
against unreasonable or insincere allegations—the right not to be offended has
been enshrined in a federal mandate.
The
letter further states that campuses have "an obligation to respond to
student-on-student harassment" even when that harassment occurs off-campus. In
some circumstances, the letter says, universities may take "disciplinary action
against the harasser" even "prior to the completion of the Title IX and Title IV
investigation/resolution." In plain English: Students can be punished before
they are found guilty of harassment.
Given that the letter represents an interpretation of federal law by major
federal agencies, most colleges will regard it as binding. Noncompliance
threatens federal funding, including Pell grants and Stafford loans.
The
implications for professors and students are enormous. An unsuccessful request
for a date, or even assigning a potentially offensive book like "Lolita," could
now be construed as harassment. As attorney and civil libertarian Wendy Kaminer
commented on The Atlantic’s website this week: "The stated goal of this policy
is stemming discrimination, but the inevitable result will be advancing it, in
the form of content-based prohibitions on speech."
This attack on campus free speech follows the Education Department’s directive
two years ago requiring every college in the country that receives federal funds
to lower the standard of evidence in sexual-harassment cases. The "preponderance
of the evidence," the judiciary’s lowest standard of proof, became the required
standard. (Many institutions had previously used the "clear and convincing"
standard.) As former Dean of Harvard College Harry Lewis has noted, the
"preponderance of evidence" mandate means "more convictions—of both guilty and
innocent individuals," which is a troubling result "in a society that values
individual rights."
Last week’s letter is part of a decades-long effort by anti-"hate speech"
professors, students, activists and administrators to classify any offensive
speech as harassment unprotected by the First Amendment. Such speech codes
reached their height in the 1980s and 1990s, but they were defeated in federal
and state court and came in for public ridicule.
Despite these setbacks, harassment-based speech codes have become the de facto
rule. Earlier this year, my organization, the Foundation for Individual Rights
in Education, published a study that looked at 409 colleges and found that 62%
maintain codes that violate First Amendment standards.
The
stifling effect of these codes isn’t theoretical. In 2011, the University of
Denver suspended a professor and found him guilty of sexual harassment because
his class discussion on sexual taboos in American culture (in a graduate-level
course) was considered too racy. Last year, Appalachian State University
suspended a professor for creating a "hostile environment" after she criticized
the university’s treatment of sexual-assault cases involving student-athletes
and screened a documentary critical of the adult-film industry.
Recent history gives no reason to expect that the government’s new directive on
"verbal conduct" will remain confined to sexual speech. At Tufts in 2007, a
conservative student publication was found guilty of harassment for criticizing
Islam. The same happened to a professor at Purdue University at Calumet in 2012,
who faced a four-month investigation.
An
obsession with political correctness and the expansion of bureaucracy on campus
are key factors in the proliferation of such free-speech abuses. But the hidden
force that pushes schools to overreact to offensive, or merely dissenting,
speech is fear of liability and the federal government. A growing
"risk-management" industry—complete with regular conferences, conventions and
consultants—has arisen from efforts by university administrators trying to avoid
being sued for discrimination or harassment, and to avoid the costly
investigations in which the Education Department’s Office for Civil Rights
specializes.
All
of this effort and expense ought to be unnecessary. The Supreme Court already
did the work in Davis v. Monroe County Board of Education (1999).
Recognizing that workplace standards for harassment were inappropriate for
educational institutions, in Davis the court offered a clear, narrow,
workable definition of harassment as a targeted pattern of serious and ongoing
discriminatory behavior.
Adopting this standard would have solved—and would still solve, if
implemented—universities’ liability panic, while allowing real harassers to be
punished and avoiding serious threats to freedom of speech. But the Education
and Justice departments apparently don’t want to embrace the Supreme Court’s
solution. In their letter, they explicitly reject (and misquote) the court’s
thoughtful analysis in Davis,deeming it inapplicable for the agencies’
"purposes of administrative enforcement."
When the Education Department lowered the standard of evidence for harassment
accusations in 2011, some college administrators complained, but most meekly
accepted the federal mandate. They may be regretting that submission, now that
the government is pushing for even lower standards. Unless we decide that
college should primarily be a social institution devoted to preventing offense,
it is time for universities—as well as state governments, alumni, students,
parents, faculty and citizens—to fight back.
Mr. Lukianoff is the author of "Unlearning Liberty: Campus
Censorship and the End of American Debate" (Encounter, 2012) and the president
of the Foundation for Individual Rights in Education.
The Wall Street Journal, May 17, 2013.
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